So You're Being Evicted? Tips for Tenants

September, 2003

Contents

Introduction

Most tenants who are facing eviction are being evicted as a consequence of
nonpayment of rent. Others may face eviction for a variety of reasons, including
violation of lease terms, creation of a health or safety hazard, or even a
personality dispute with a landlord.

While landlord-tenant law, and the laws governing the eviction process, can
change substantially between jurisdictions, there are some generalities which
apply for most jurisdictions. If you are facing eviction you should check
with a lawyer or tenant's union in your area, so you can learn the specific
laws which apply to your situation.

The following information is of a general
nature, and may not apply where you reside.

Nonpayment of Rent

In most jurisdictions, there is an expedited process for evicting a tenant
for nonpayment of rent. Typically, the tenant is served with a legal notice
requiring that rent be paid by a specific date (e.g., within seven days of
service), after which time the landlord can commence an eviction action. Many
times, a landlord will agree to accept a partial payment during this time,
with the promise that any remaining rent arrearage will soon be paid in full.

If the landlord accepts partial payment (no matter how small) prior to obtaining
a judgment on a nonpayment action, upon learning of the acceptance of the
payment most jurisdictions will dismiss any eviction proceeding premised on
nonpayment of rent. The landlord must then start the process over, in relation
to any additional rents owed.

Typically, even after judgment the tenant has a period of time during which
the rent arrearage can be paid, so as to avoid eviction.

Please note that you probably do not have the right to unilaterally withhold
rent until the landlord fixes a problem with your rental unit. You typically
will have to escrow the rent - put it into a special account, perhaps a court
account - with proper notice to the landlord of the escrow and the defect
that justifies the rent escrow. If you don't follow the proper procedures
for your jurisdiction, you may be subject to eviction for nonpayment despite
your full intention to pay all the rent you owe. (Also, many tenants who fully
intend to pay but who do not use a proper escrow account find that they spend
the rent they are withholding, and are evicted when they are unable to pay
the back rent after the problem is resolved.) Check with a local lawyer or
tenant's organization before attempting to withhold or escrow rent, so you
can make sure that you follow the local law.

Violation of the Lease

If a tenant is accused of violating a lease provision, the tenant should
review the lease to see if the accusation is true. If the tenant is in violation
of the lease, the tenant should consider either correcting the violation,
or consulting with the landlord about obtaining an exception or about the
possibility of being released from the lease and moving. Please note that
if you are violating a lease, the landlord can evict you and still charge
you rent for the period following your eviction, up to the point in time when
either the lease expires or a replacement tenant can be found.

For example, if the lease prohibits the ownership of pets, a tenant may be
able to negotiate an additional cleaning fee or monthly rent premium to be
paid to the landlord for permission to keep the pet. In one real-life case,
a tenant made a deal with the landlord to live in an apartment with tattered
carpeting in exchange for being permitted to keep a cat. The landlord would
otherwise have had to incur the cost of replacing the old and worn carpeting,
and wasn't worried that the cat would damage a carpet that was already due
for replacement.

Periodic Tenancies

A periodic tenancy may arise either under a lease, or without a lease. In
a periodic tenancy, there is no obligation on the part of either the landlord
or the tenant to continue a tenancy past any given rental period. With a one-year
lease, a tenant will typically be required to pay rent on a monthly basis,
but will be obligated to pay rent until the entire lease period has expired.
Similarly, the landlord can only evict the tenant for cause during the duration
of the lease. In a periodic tenancy, either the landlord or the tenant can
terminate the tenancy on proper notice, usually defined as a full rental period
(the period between when rent payments are due). If a lease expires but the
tenant doesn't move, the tenancy is typically automatically transformed into
a periodic tenancy, based upon the period between rent payments. That is,
if rent is due once per month, either the landlord or tenant can terminate
the tenancy on a month's notice.

There are advantages and disadvantages to having a periodic tenancy instead
of a lease. The lease protects the tenant against arbitrary eviction, and
ordinarily limits rent increases during the term of the lease, but the periodic
tenancy gives the tenant considerable flexibility in determining when to end
the tenancy.

If a tenant stays past the end of a lease term without the landlord's permission,
the tenant becomes known as a "holdover tenant". Depending upon
the jurisdiciton, a holdover tenancy is typically treated as a periodic tenancy,
particularly if the landlord accepts a rent payment for the tenant's residence
after the expiration of the lease. Note that a landlord may decline to accept
payment for any post-lease residence, and instead seek to evict the holdover
tenant.

Any time a tenant makes a complaint to a landlord, the tenant should make
a written record of when the complaint was made, the person to whom the complaint
was made (if the landlord has a property management staff), when the problem
was resolved, and whether the resolution was satisfactory. For problems which
might inspire the tenant to try to get released from a lease before the end
of its term, or might seek a rent abatement, the tenant should provide written
notice to the landlord of both the problem and of the actions the tenant intends
to take if the problem is not remedied. If a tenant has a good relationship
with a landlord, it may be sufficient to report minor problems by phone or
in person. If the landlord is not responsive about fixing problems, or if
there are a lot of problems or reported problems are not being adequately
resolved, a tenant may instead choose to report any problems in writing. The
best practice is usually to report all problems in writing, although a tenant
may wish to weigh that against the potential for damaging a positive landlord-tenant
relationship by seeming heavy-handed.

Health and Safety Issues

If you have damaged the apartment, or have created a health hazard, you shouldn't
be surprised when your landlord attempts to evict you. When you are being
evicted on an expedited basis due to property damage or a health hazard, you
may be able to slow things down by repairing the damage or correcting the
hazard. However, many landlords will proceed with a conventional eviction
against any tenant who creates this type of situation, even after the problem
is resolved.

Bankruptcy

When a tenant files for bankruptcy,
the "automatic stay" will prevent the continuation of eviction proceedings
until the bankrupcy is resolved, or the bankruptcy court otherwise permits
eviction proceedings to continue by lifting the stay. This can prevent a pending
eviction, and may result in the full or partial discharge of a rent arrearage.
Please note, however, that the bankrupt tenant remains obligated to pay any
new rent obligations which arise from continued tenancy after the bankuptcy
is filed, and failure to keep current with post-petition rent payments may
result in eviction.

Bringing a Counter-Claim

Some tenants will bring a counter-claim against a landlord in response to
an action for eviction. A counter-claim may contend that an eviction should
be stopped, on the basis that it is a "retaliatory eviction" resulting
from the tenant's complaint to a government agency about housing violations
by the landlord. (Please note that such complaints must be made before the
landlord commences the eviction process in order to be valid, and may not
provide much of a defense against an eviction for nonpayment of rent.) A counter-claim
may seek damages for violation of consumer protection laws, or a rent abatement
due to problems with the apartment.

While some states have very few protections for tenants, in most jurisdictions
tenants have rights including:

The right to heat;

The right to running water (hot and cold);

The right to proper garbage removal (from the designated receptacle -
e.g., the apartment's dumpster);

The right to have common areas (e.g., lobbies, stairways, halls) maintained
in a clean and safe manner;

The right to housing in compliance with state and local building codes
and housing regulations.

An action for a "rent abatement" requests that the court give the
tenant credit against the rent for any period of time when those rights weren't
filled, or when the landlord wasn't complying with the lease. The request
may range from a small percentage for a minor violation, to the request that
the entire amount of the rent be abated if the apartment was effectively rendered
uninhabitable by the landlord's violation.

Landlords may also be subject to consumer protection actions. In some jurisdictions,
a landlord may be subject to a claim if the landlord deducts a cleaning expense
from a damage deposit. In some jurisdictions, if a landlord did not properly
escrow a damage deposit, or if the landlord does not notify the tenant of
alleged damages within a fixed period of time after the tenant vacates the
premises, the landlord may have to return the entire damage deposit. Please
note that if the tenant does not give a forwarding address to the landlord
within a few days of moving, any notice requirement will likely be deemed
waived.

Trials

If a tenant's action against a landlord, or an action to evict the tenant,
is going to trial, the tenant should make sure that all relevant documentation
is collected and organized before going to court. The tenant should make copies,
so that the tenant can provide a copy to the court for its file or use a copy
as an exhibit for the jury, as well as being able to provide a copy to opposing
counsel. The tenant should identify any witnesses whose testimony will be
helpful in advance of the trial, and subpoena them to appear. (Even if witnesses
promise to appear, a subpoena will allow them to get out of work if their
employer won't otherwise release them, and will provide the tenant with some
level of protection if they get cold feet about testifying - particularly
if they fear retaliation from the landlord.)

It is generally a good idea for tenants who are facing eviction to utilize
an attorney. Some tenants will be eligible for legal assistance. Unrepresented
tenants may find that the legal process is difficult, may not know how to
examine witnesses or present evidence, may not understand what needs to be
proved to win an eviction action, and may not know how to respond to a landlord's
allegations or to dispute inflated charged for alleged damages. In most areas,
a tenant may be able to find a lawyer through a county bar association or
state bar referral service.